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Guantanamo and the growth of secret justice

Today marks the tenth anniversary of the first detainees arriving at Guantanamo Bay. It’s a bitter irony that the Government has chosen to mark a decade of one of the War on Terror’s worst excesses with its Justice and Security Green Paper. It appears our Executive’s answer to such terrible scandals is not more public scrutiny but less.

This is a blueprint heavy on secrecy – sorry, security – and light on justice. If the Government gets its way we can kiss goodbye to centuries of fair trial protections. The vital constitutional principle that no-one is above the law – including the Executive – will vanish forever.

You know a Green Paper is flawed when its two most notable proposals are both non-starters, championed without any justification. Firstly, the Government wants to introduce Closed Material Procedures and Special Advocates more generally into the civil law. These proceedings would be conducted without the party bringing the claim and secret evidence – never disclosed to the claimant, let alone public or press – would be used to defend serious allegations. The only people present would be the judge, the Government itself and Special Advocates; forced to try and represent claimants without being allowed to discuss evidence with them. Secondly, the Government is seeking to elevate the Security Services – and potentially other bodies – above the law in civil actions focusing on the wrongdoing of third parties where the UK is involved. Yet there is no coherent case made for either suggestion. Neither must be allowed.

It’s not just us who say so. It’s telling that the very individuals the Government wants to build its new system around have voiced their criticism. Of the 69 current Special Advocates, 57 have signed a response hitting out at the proposals. They recognise that the Green Paper represents a huge departure from the foundational principle that all parties are entitled to see and challenge all evidence relied upon in court. They feel that only the most compelling reason could justify such changes and that no such reason has been identified and none exists.

And judges and members of Britain’s most secretive court – the Investigatory Powers Tribunal, the judicial forum for complaints against MI5, MI6 and GCHQ – have also warned that the plans are seriously flawed and likely to prove excessively costly.

Despite Guantanamo’s shadow, the Government has managed to dream up a scheme that, if previously in force, would have stopped the murkiest practices of post 9/11 policy from coming to light. In reply to the litigation and journalism which challenged and uncovered those unacceptable excesses ministers are now seeking to undermine the ability of individuals to hold those in power to account.

National security is crucial and the valuable work of the Security Services and the pressure they are under should not be underestimated. But this Green Paper is not the answer. Its premise that it may actually boost accountability and procedural fairness is extremely naïve.

These proposals would forever recast the entire civil justice system in the Government’s favour, and the fact the document fails to recognise its own significance is deeply disturbing. Democracy dies behind closed doors and the authors of this particular Green Paper must heed the criticism, remember Guantanamo and think again.

Read Liberty's response to the Ministry of Justice consultation on the Justice and Security Green Paper